United States v. Vallecillo-Rodriguez

UNITED STATES OF AMERICA, Plaintiff/Respondent,v.JOSE FERNANDO VALLECILLO-RODRIGUEZ, Defendant/Movant.

PROPOSED FINDINGS AND RECOMMENDED
DISPOSITION

KEVIN
R. SWEAZEA UNITED STATES MAGISTRATE JUDGE.

Federal
inmate Jose Fernando Vallecillo-Rodriguez seeks review of his
sixty-month sentence under 28 U.S.C. § 2255 arising from
his guilty plea to unlawful reentry. Vallecillo-Rodriguez
argues that the Court must set aside his sentence because it
was calculated, in part, using a 1995 conviction for
second-degree murder in state court that was vacated in
January 2017. Without this conviction, Vallecillo-Rodriguez
maintains, the appropriate range of his federal sentence is
only six to twelve months, which he has already served.
Instead of filing a response, the Government moved to enforce
the broad appeals-waiver clause of Vallecillo-Rodriguez's
written plea agreement, which purports to bar collateral
challenges. Vallecillo-Rodriguez insists the waiver is
unenforceable because it was the product of ineffective
assistance of counsel. Pursuant to an order of reference from
Chief United States District Judge William Johnson,
see 28 U.S.C. § 636(b), the Court has
considered the parties' submissions and reviewed the
record. Having done so, the Court recommends that
Vallecillo-Rodriguez's motion GRANTED
and he be resentenced.

I.
BACKGROUND

On May
20, 2013, Vallecillo-Rodriguez, a Mexican national previously
removed from the United States, was arrested by federal
immigration agents in Albuquerque, New Mexico. (Doc. 51).
Although Vallecillo-Rodriguez had been lawful permanent
resident, he was deported after serving a ten-year sentence
for a second-degree murder conviction from the Second
Judicial District Court for Bernalillo County, New Mexico.
(Doc. 71-1). Vallecillo-Rodriguez had previously attempted to
return to the United States on different occasions, and at
the time of his arrest, was under a removal order from
November 2011. (Docs. 51; 71-1). On July 25, 2013, a federal
grand jury returned a single-count indictment charging
Vallecillo-Rodriguez with unlawful reentry into the United
States after having been deported, in violation of 18 U.S.C.
§ 1326. (Doc. 14).

Following
his indictment, Vallecillo-Rodriguez began exploring plea
negotiations though his court-appointed attorney. (Docs. 7;
35). On May 14, 2014, Vallecillo-Rodriguez asked the Court to
authorize the United States Probation Office to prepare a
“Pre-Plea Presentence Report (Form 13)” to assist
in that regard. (Doc. 35). The Court granted the motion.
(Doc. 37). Toward the end of 2014, Vallecillo-Rodriguez also
engaged an attorney to renew previous challenges to his
second-degree murder conviction in state court. (Doc. 71-1).
Vallecillo-Rodriguez asserted trial counsel failed to
adequately explain to him that his guilty plea to
second-degree murder would cause him to be deported to Mexico
after completing his sentence. (Id.).

On
February 26, 2015, Vallecillo-Rodriguez pleaded guilty to the
single count in the federal indictment. (Doc. 51). In a
written agreement, Vallecillo-Rodriguez admitted he was a
Mexican national, had knowingly reentered the United States
after being deported, and had not obtained the express
consent of the Secretary of Homeland Security to do so.
(Id.). In exchange for the plea and
Vallecillo-Rodriguez's “waiver of appeal rights,
”[1] the Government agreed to a specific
sentence of 60 months incarceration pursuant to Federal Rule
of Criminal Procedure 11(c)(1)(C). Magistrate Judge Lorenzo
Garcia accepted the plea on the same day. (Doc. 42) During
the colloquy, Judge Garcia explained:

Judge Garcia: . . . Judge Johnson will determine whether he
can accept your plea agreement only after he considers a
presentence report and the sentencing guidelines. Therefore,
Mr. Vallecillo, even though I am prepared to accept your plea
of guilty today, Judge Johnson retains authority to accept
the plea agreement as distinct from the plea of guilty. Do
you understand he has that authority?

Vallecillo-Rodriguez: Yes.

Chief
Judge Johnson set the matter for sentencing.
Vallecillo-Rodriguez moved to continue the initial sentencing
hearing-and on two other occasions after the Court granted
the first request to delay the proceedings. (Docs. 54; 57;
59). Although continuances are routine and normally would
merit little discussion, they are of importance here because
of the reason Vallecillo-Rodriguez sought them. Even
after agreeing to a specific term of imprisonment
and waiving collateral challenges, Vallecillo-Rodriguez
wanted sentencing put off because he “filed a motion in
the state court to vacate his [second-degree murder]
conviction” and “[i]f [his] prior conviction is
overturned, it may have implication with regard to sentencing
and supervised release hearings.” (Docs. 54; 57; 59).
Each time, the Government agreed to the relief requested.
(See id.).

On July
26, 2015, Chief Judge Johnson denied a third motion to
continue. (Doc. 62). In an amended order, the Court
acknowledged that “if Defendant's 1995 conviction
were vacated prior to sentencing . . . Defendant's
guideline imprisonment range would be reduced from [a range
of] 70 to 87 months . . . to a range of 37 to 46
months[.]” (Id.). The Court, however, was
unwilling to delay sentencing any further because “the
mere possibility that Defendant might succeed in having his
twenty-year-old murder conviction vacated does not justify
further delay in this action.” (Id.). The
Court also explained that Vallecillo-Rodriguez was adequately
protected should he obtain a favorable ruling:

[I]f Defendant ultimately succeeds in his habeas action after
this Court sentences him, he is not without remedies.
“If a defendant successfully attacks state sentences,
he may then apply for reopening of any federal sentence
enhanced by the state sentences” through a federal
habeas action under 28 U.S.C. § 2255. The availability
of this safeguard further weighs in favor of moving forward
with Defendant's sentencing hearing as scheduled.

(Id.) (Citation omitted).

On
August 4, 2015, the Court sentenced Vallecillo-Rodriguez to
the 60-month agreed upon term. (Docs. 61; 63). As for the
pending state court proceedings, Chief Judge Johnson
explained:

THE COURT: All right. For purposes of -- as we sit here
today, before we get to the 11(c)(1)(C) plea agreement,
I'll find Probation correctly calculated the
Defendant's Offense Level at 21, his criminal History
Category is 5, and again, before you get to anything in the
plea agreement, the guideline range is 70 to 87 months. Now,
I agree with counsel that in the order denying the Motions to
Continue, that I was wrong. I did this while I was in Las
Cruces last week at a trial, and I didn't catch this when
I reviewed the order. But if the Defendant is successful in
getting the State conviction set ...

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